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The Situation of Emotional Distress Claims

Betsy Grey has recently posted her intriguing paper, “Neuroscience and Emotional Harm in Tort Law: Rethinking the American Approach to Free-Standing Emotional Distress Claims” on SSRN. Here’s the abstract.

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American tort law traditionally distinguishes between “physical” and “emotional” harm for purposes of liability, with emotional harm treated as a second class citizen. The customary view is that physical injury is more entitled to compensation because it is considered more objectively verifiable and perhaps more important. The current draft of the Restatement of the Law (Third) of Torts maintains this view. Even the name of the Restatement project itself – “Liability for Physical and Emotional Harm” – emphasizes this distinction. Advances in neuroscience suggest that the concern over verification may no longer be valid, and that the phenomena we call “emotional” harm has a physiological basis. Because of these early scientific advances, this may be an appropriate time to re-examine our assumptions about tort recovery for emotional harm.

Using studies of Post Traumatic Stress Disorder as an example, this paper explores advances in neuroscience that have begun to shed light on the biological basis of the harm suffered when an individual is exposed to extreme stress. These advances underline the shrinking scientific distinction between physical and emotional harm. Drawing on these scientific developments, as well as on the British approach to emotional injury claims, the paper concludes that we should rethink the American treatment of emotional distress claims. In general, it proposes that we change our approach to account for advances in neuroscience, moving toward a more unified view of bodily and emotional injury. Two potential legal applications are advanced in this paper: (1) that science can provide empirical evidence of what it means to suffer emotional distress, thus helping to validate a claim that has always been subject to greater scrutiny; and (2) that this evidence may allow us to move away from the sharp distinction between how physical and emotional injuries are conceptualized, viewing both as valid types of harm with physiological origins.

One Response to “The Situation of Emotional Distress Claims”

AnonymousStudentsaid

Earlier this month, a boarding school I attended as a teenager was closed due to charges made by former students detailing abuse and neglect. While I had often hoped the school would shut down, I had always felt that the details of our emotional distress would not be incriminating enough. Apparently some of my former classmates felt differently. Reading over the allegations, I can’t help but wonder if the state ultimately reacted because the charges invoked something from the physical realm (“they made us recreate scenes of sexual abuse from our past”…etc). I wonder if the charges could have been sucessfully made by simply describing the emotional distress without invoking the sexual imagery.

For more on the background of this case, this Huffington Post article is a good place to start.